Twitter to Appeal Ruling That the Fourth Amendment Does Not Protect Public Tweets

Published On August 2, 2012 | By Melissa Maalouf | Privacy
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A lawyer for Twitter recently announced through a tweet that the company intends to appeal the recent decision of a New York criminal court that an Occupy Wall Street protester’s tweets are not protected by the Fourth Amendment.

In State v. Harris, the issue was whether Twitter must comply with a subpoena requesting all user information for the protester and tweets on his account between September and December 2011, including tweets that were no longer visible because new ones had crowded them out.  In April, the court denied the protester’s motion to quash the subpoena, holding that he did not have standing because the subpoena was issued to Twitter.  Following the ruling, Twitter filed its own motion to quash the subpoena.

Twitter argued that, based on the concurrence by Justice Sotomayor in United States v. Jones, the court should reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties, and that the protester should have some reasonable expectation of privacy in his tweets.  The prosecutor argued that the Twitter information was not protected by the Fourth Amendment, given that all of the tweets were made publicly available.  The prosecutor also argued that the information requested was directly relevant to the protester’s disorderly conduct violation since the tweets would prove that the protester was aware of police orders not to walk on certain roadways.

On June 30, the court issued its ruling denying the motion to quash in part, holding that tweets are not the same as emails sent to a single third party, and that a person can have no reasonable expectation of privacy in a tweet sent around the world.  The judge likened the situation to a man who yells out an open window that he has committed a crime.  A witness walking across the street at the time would be allowed to testify in court as to what she heard.  The court therefore noted that “today, the street is an online, information superhighway, and the witnesses can be third party providers like Twitter, Facebook, Instagram, Pinterest, or the next hot social media application.”

The court further held that there was no violation of the defendant’s reasonable expectation of privacy given that there was no physical intrusion into the defendant’s Twitter account, and found that the defendant’s tweets constituted public broadcasts to the world.  The court also didn’t believe that the defendant’s subjective expectation of privacy was violated because “if you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy,” and there is no proprietary interest your tweets, which “you have now gifted to the world.”  In contrast, private emails, private direct messages, private chats, or any of the other means of private communication over the Internet would require a warrant based on probable cause to access.  Finally, the court noted that even when a user deletes his or her tweets there are still search engines available (such as “Untweetable” and “Tweleted”) that record everything users have publicly tweeted and later deleted.

The court also considered the Stored Communications Act and ordered that all of the protester’s subscriber information, and tweets over 180 days old, must be produced by Twitter in response to the court’s order.  However, the court noted that the protester’s tweets from December 31, 2011 can only be obtained with a warrant, since those tweets had only been in electronic storage for 180 days or fewer from the date of the order.

About The Author

Melissa Maalouf’s practice focuses on advising a broad range of clients, from start-ups to established companies, on both U.S. and international data privacy and security issues. Melissa assists clients in drafting appropriate website disclosures, implementing legally-compliant e-commerce flows, responding to FTC Section 5 and state AG enforcement actions, analyzing advertising claims, and children’s online privacy and safety issues. She also regularly helps clients obtain certification under the EU-US Safe Harbor and navigate compliance with divergent international privacy laws.

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